>> sunday night at 8:00 eastern and pacific on c-span's "q&a." >> join american history tv on sunday as we take a tour of the clara barton national historic site. clara barton founded the american red cross following the civil war and relocated its headquarters to a house in clinical maryland, near washington d.c., in 1897. we learn about her life and the work of the red cross on a tour of the house. that is sunday night at 6:00 and 10:00 eastern here on c-span3's american history tv. >> swiss born confederate captain wirz was in charge of the andersonville prisoner of war camp where thousands of union prisoners died. author and law professor paul finkelman discusses the military trial and execution and the concept of war crimes established in the trial. this is a portion of the 20

civil war symposium, hosted by the u.s. capitol historical society. >> your nest speaker is me -- your next speaker is me. having just introduced myself, i will not do it again. i will just say that because of the vagaries of the world of the u.s. senate, we are going to try to get out of here at 4:30 rather than 4:45. i'm going to speak in a truncated version of my talk. so that michael can have the four -- the full allotted time he has been promised. both of us are going to be talking about andersonville and the trial of henry wirz. during the civil war, this set of photographs was published. as you can see, all of them are soldiers who have just come back from prisoners of war camps. looking really like nothing americans had ever seen, and in

fact, looking like people that americans or the world with mostly not see again until the end of world war ii when people came out of places like buchenwald and auschwitz. these were truly frightening pictures. after the war, we began to get other pictures. this is a soldier from new york, a recently discovered photograph by a graduate student at george mason university. candace gray found this for me. this is a man whose feet became infected, and his feet were literally cut off by scissors. later, they had to use bone saws to saw the bones off. along with this picture of calvin bates of new york, an affidavit he sent to the government about what happened to him. another soldier from andersonville. this is actually the same guy

being examined. i will shut these off because i don't think we want to be staring at them. i think it is important to understand that when we think about the trial of henry wirz, we start with these images. what americans saw at the end of the war as the prison walls came back from the south, horrors that were unbelievable. andersonville was the worst of the prison camps. approximately 45,000 u.s. soldiers were held at andersonville. approximately 13,400 of them died while at andersonville. henry wirtz was arrested in may of 1865. he was subsequently tried. while he was being held in jail, he made various complaints. one of those was that his wife

could not visit him as often as he wanted. this was a man who had a sense of entitlement that seems totally disconnected to what he was on trial for and the way he treated prisoners in andersonville. to use a nice playoff, while u.s. soldiers were prisoners at andersonville, women from the area tried to bring them fresh vegetables. a confederate southern women saw what was happening to the prisoners, and they were shocked by the horror of it. there are letters where they say, even though these people were evil yankees, nobody should be treated like this. of course, wirz would not allow them to bring fresh vegetables to the soldiers there. approximately 160 witnesses testified. most of them had been in the camp.

the trial is, by all standards of modern trials and due process, a train wreck. it is not a legitimate trial the way we would normally hold trials. the evidence is weird. a number of soldiers testified that they saw him personally kill soldiers on a particular day, and some of these particular days were days when wirz was not at the camp. we have a trial where it is easy to pick apart the trial and say, the trial was not a legitimate trial. it was a trial simply of vengeance, the vengeful northerners picking on this poor captain who, of course incarcerated people who ended up looking like this. one of the questions that we should ask about andersonville is not why wirz was tried, but

why was wirz the only one who was tried? one of the things we need to think about when we think about the end of the war is not the wirz trial but the failure to try a number of other significant confederate leaders for what today we would describe as war crimes. one of the problems with the jurisprudence of post-civil war america is nobody has a conception of really what a war crime is. when he is put on trial, they want to put him on trial for murder, and the charge is you have to prove that wirz himself murdered prisoners of war. i think there is fairly strong evidence he did shoot prisoners of war. there is strong evidence he may have simply killed or ordered the summary execution of people for no good reason at all, but what the trial really is is the

beginnings of the concept of war crimes and the concepts of crimes against humanity and the idea that some people can be tried not for what they did in the direct sense of killing people, but rather for their leadership, for their crimes of omission as leaders, and their crimes of commission in creating circumstances that lead to the deaths of thousands of people who needlessly died. to apply the standards of the wirz trial at nuremberg or after world war ii, one would imagine you would have to prove that the nazis tried at nuremberg, we would have to prove that they personally put somebody in the gas chamber. by the end of world war ii, we no longer have to do that. what i want to do is step away from the trial itself and talk about the crime and talk about what wirz is on trial for.

before the civil war, the united states army had something known as the u.s. articles of war. the u.s. articles of war essentially followed the traditional, well understood customs of warfare at the time. one of the customs of warfare, the understandings and usages that were accepted by all americans since the revolution that have been promulgated by the military over and over again, including the general regulations of the army promulgated by secretary of war john calhoun in 1821, and all of these rules said you had to treat prisoners of war humanely. you had to provide them with enough food. you had to provide them with shelter. you cannot summarily execute them. every one of the leader in confederate officers, and indeed almost all of the confederate officers, because most of them were west point graduates, have

studied these rules and had applied these rules while they were in the united states army before they left. the confederate government adopts the regulations of the army in the confederate states and among the other things it adopts, it adopts verbatim the u.s. articles of war. the existing rules on how you treat prisoners of war in 1860 are the same for the confederate army in 1865. they have changed for the united states because during the war, the united states used the lieber code, a code of war, code of conduct written by francis lieber. francis lieber had spent most of his life in columbia, south carolina as a professor at the college of south carolina, which later became the university of

south carolina, and lieber's code sets out further rules for the prisoners of war, but they are not substantially different than existing rules. the only difference is the united states is now explicitly codified a more -- a few more rules and the united states has made it clear it expects its soldiers and its enemies to abide by these rules. well the confederates can say, we are not under your code, the confederates were certainly aware the lieber code was out there and could be used against them. we have heard talk about general sherman. he marches to georgia under the lieber code and there are times when he orders the execution of his own troops for violating the lieber code. there are northern troops, for instance -- sherman's office was finding a covered wagon full of things american soldiers had taken from southern homes to

read sherman orders the trial of everyone connected with this wagon and he simply burned the entire wagon. he does not know who they belong to, but they are not going to belong to american soldiers. and as we learned earlier today, the lieber code protects scientific instruments, books, etc. after the american revolution, americans complained about the way the british treated american pow's. after the war, americans particularly southerners complained about the way a -- the british treated americans captured during the war of 1812. at andersonville, as at any of these camps, you could be

certain there was a reasonably high death toll because of disease, because of the not very well understood ways in which you have sanitation in a prisoner of war camp, because prisoners of war came wounded. but there were certain things that happened in andersonville that do not happen anywhere else. one of them was the water supply. andersonville is built downstream from a confederate military camp. the confederate military camp uses the river that runs through the andersonville risen as a -- prison as sort of an open latrine. so the creek that is going through andersonville increasingly becomes an open sewer. the water is polluted. and by the end of the war, the

only marginally freshwater in the stream is in the very center of the stream. if you wade through the muck the human waste and pollution coming down from the confederate military camp and to reach into the middle of the river, you can get freshwater. captain wirz puts ropes along the river to prevent people from reaching the middle of the river and orders his soldiers to shoot to kill anyone who reaches over the rope to get freshwater. prisoners in andersonville have a choice. either drink polluted water filled with human waste or they could risk getting shot trying to reach freshwater. this is example of the kind of behavior of captain wirz that rises to the level of a war crime. similarly, wirz builds other barriers around the camp with explicit orders to shoot to kill anyone who crosses these barriers, even though these barriers seem to have nothing to do with what might be considered

an escape. what they do do, of course is provide the opportunity to shoot prisoners whenever you want. the food supply, which leads to the starvation, the cadaver-like survivors we just looked at -- the food supply is, of course, an issue. defenders of wirz, lost cause historians, people who want these south to rise again constantly say wirz did the best he could under terrible circumstances because the south is starting. but if the south was starving, why were general sermon -- general sherman's troops eating better than ever before? the reason is georgia is full of food.

there is not starvation in georgia. there are southern troops that are not getting enough food. that has to do with the complete and total mismanagement of the army. it has a lot to do with jefferson davis's utter incompetence as president of the confederacy. it is not the lack of food in the south. it is a question of how you get food from north carolina and georgia and mississippi to be -- the troops. but wirz is in south georgia where food is available. food could have been commandeered. food could have been bought. the local women who simply wanted to bring fresh vegetables to the starving prisoners in andersonville could have been allowed to bring the food, or they could have brought them to the camp and the camp could have brought -- camp officers and soldiers could have brought them to the prisoners. freshwater could have been obtained in a variety of ways, one of which was to order the troops upstream to stop using this creek as a latrine.

the other thing would have been to take a detail of prisoners every day and march them upstream, fill large barrels or buckets of water, and bring them down. prisoners could have marched all day long up-and-down bringing water. you would have freshwater. wirz does not do any of those things. instead he thinks of new ways to harass prisoners and prevent them from getting basic nutrition and any kind of basic health. it strikes me when we think about andersonville, we need to think about the notion of a war crime and the notion of the duty that you all to soldiers who you -- that you owe to soldiers who you have captured. part of the horror of andersonville goes to the exchange of soldiers. the lost cause history on the exchange of prisoners is grant cynically decides he does not

need to exchange prisoners because he has more troops than the confederates and by exchanging prisoners or paroling -- paroling prisoners -- which means they cannot reenlist in the army -- he will increase confederate troops, which will only lengthen the war. however, that is not grant's position at all. he is happy to exchange prisoners for prisoners, provided the confederates will exchange all prisoners of war. the confederate government, led by secretary of war setin, with the approval of jefferson davis and the approval of robert e lee -- robert e. lee and the entire confederate high command say we refuse to exchange black prisoners of war because we refuse to recognize black people as legitimately soldiers. in fact, what the confederate army does for a short while is to enslave black prisoners of war, which is again a violation of every known rule of war at

the time and is a throwback to the roman empire. and in fact, if you add to this jubal early's incursions twice into pennsylvania where he spends his time hunting down blacks to bring them back to the south, the confederate army starts to look like some weird modern version of the roman empire going to hunt slaves in gaul or among the germanic tribes. or even more weirdly, it looks like a precursor of the nazis, who spend their time hunting jews in ukraine and russia rather than fighting the russian army just as the confederates are hunting blacks in pennsylvania and maryland instead of fighting the united dates army.

so, i think the question of war crimes and the question of henry wirz is not, does henry wirz richly deserve to be hanged? i am against capital punishment, but i am a 21st century person not a mid-19th-century person. had i been a mid-19th-century person, i probably would not have been against capital punishment, certainly not for war criminals like wirz. if you believe in capital punishment, there are very few people in american history who more richly deserve to be at the end of a rope then henry wirz, but if there were some they would have included jubal early, nathan bedford forrest for the massacre of black soldiers at fort p lo, they would have included perhaps the commanders of the confederate army -- not for being traitors, but rather for perpetuating war crimes against black soldiers, white

pow's during the civil war. as i leave you with the stars, we have a few minutes for questions. -- as i leave you with these thoughts, we have a few minutes for questions. [applause] we have an anxious hand here in the middle row. >> wonderful talk. it may be perfectly true that conditions that andersonville were worse than for confederate pow's at point lookout and fort myra, but there was no question the union could have more easily divided better treatment, but did these mist treatment -- did the mistreatment of confederate pow's in northern camps rise to the level of war crimes? >> i do not think -- let me first say i am not an expert on northern pow camps. from what i have read, it does not seem to me that the northern camps are led by such creative and inventive people as henry

wirz and people who seemed desirous of having the outcome. i do not blame all of the deaths at andersonville on henry wirz. in the best pow camps in the civil war -- if you look at the deaths of united states army soldiers who are in u.s. army camps, the death rate is very high. sanitation is lousy, disease is rampant, but there is a huge difference between what is going on in those camps, and what i think is going on in el mira and what is going on in andersonville. there are no confederate prisoner pictures i have ever seen that look like the people coming out of andersonville. they do not look like they are coming out of dock how -- dachau. >> paul, you are uncharacteristically shy at the

end of your talk -- [laughter] you talked about the confederate commanders who deserved execution. you seemed to imply that robert e. lee would be culpable for the chasing of blacks, for war crimes? >> you have two periods of general lee. when is he is absolutely incapable of controlling subordinate commanders. he does not know anything about jubal early and can't do anything about it, or lee is complicit when early spends through four days capturing blacks and enslaving them and when they retreat from gettysburg, these black prisoners are taken back with them. either one or the other. by every known rule of law of war of the mid-19th century, it is against the rule of war to

enslave civilians. it is against the rule of law to ask for payment and bribery in order not to destroy a town, as again jubal early does and some other commanders do. and my assumption is lee knows this is going on. maybe he is incapable of doing anything about it, which of course raises a different kind of lost cause history question the incompetent general lee. but i think he does know what is going on and is competent and does not have any problem with this. but i preempted your question maybe, or was that it? >> therefore he is culpable and should have been executed? >> i think it is reasonable they could have put him on trial for this. i don't think they would have. i think politically it would not have happened -- i think certainly bedford forrest is so clearly more culpable and could

have been put on trial and could have been executed and would have deserved it. again, we're talking about how you bring the war to an end. one way of bringing the war to an end is to have a soft piece. -- soft peace. everybody at this conference has talked about the catastrophe of the soft peace. if lincoln was president, would it have been better? i do not think the ku klux klan would've been any different if lincoln had not been assassinated. however, one wonders what would've happened to the ku klux klan if nathan bedford forrest had been hanged before he could organize the ku klux klan. one wonders if in fact a harsher peace might not have, in the end, brought about a more lasting and just peace. it is at least something to speculate.

one of the models is the reconstruction of germany. after the second world war, the german people had no doubts what the cause was, at least for -- what the cost was, at least for their highest leaders, of war crimes. while wirz is a war criminal, he is a low-level war criminal. there were others. >> the picture that you showed to begin were taken of people after the camp had been liberated. how much was known by the northern public or the government about andersonville and what was happening before? >> i don't know. the histories are in dispute on this. there are not people being exchanged out of andersonville. while there are some people escaping and there are rumors going on -- but i don't know --

>> my second comment to that you discussed the ladies and their vegetables. how much was known in and around andersonville? >> enough to know -- >> it is beginning to sound an awful lot like germany. >> well, these are difficult analogies to make, particularly when one lives in baton rouge. i think there are analogies of the american civil war americans have never wanted to come to terms with. what is interesting about the literature on andersonville, most of it is written by what i would cause -- call lost cause apologists. yet, it is the lost cause apologists who talk about the local women trying to bring vegetables to the poor, starving union soldiers. they condemn wirz for saying these local women must be

traitors because they want to bring vegetables to the union soldiers. so, i think yes, people at least within the vicinity of andersonville have to know what is going on. the stench alone must have been enormous. that is the other thing. it is hard to imagine how you could get anywhere near andersonville without being fully aware that there is a horror show there. one more hand here. >> [indiscernible] >> could you wait for the -- >> anyone interested in history -- about the holocaust, there is the scene in poland. the camp was in the distance. the gas chambers. they interviewed all of these people -- no, they did not smell anything, they did not know anything.

>> the great olfactory collapse in poland. i am out of time, and as i said for all of the other papers, i guess mine qualifies as well, a good paper is where you can't answer all the questions. [applause] >> the battle of new orleans was the final major battle of the war of 1812 1 after the british and americans signed a treaty in 1814. join american history tv sunday as we visit new orleans for a bicentennial commemoration of the battle. that's sunday at 6:30 p.m. eastern. >> each week, american history tv's "reel america" brings you archival films that help tell the story of the 20 century.

>> the windy city of chicago as white as well as windy scattered by snow. 68 deaths were traced to the blizzard. 10-foot depths were a common sight after the 29-hour snowfall which brought this giant city to a standstill. some 10,000 cars, buses, and trucks were abandoned on the streets and highways. train and airline operations were halted, some for several days. there was widespread looting, and many fires broke out. helicopters flew emergency missions with food guns. food and mail deliveries were stopped by the snowstorm described as one of the biggest and worst of the century, it reduced chicago to a toggle in town indeed.

>> boston college history professor heather cox richardson talked about how cowboys were viewed as the counterbalance of reconstruction and republican views. their symbol has far outweighed their numbers and it was not a viable job. this was hosted by the vermont humanities council. >> this afternoon i am supposed to be talking about why cowboys mattered in the post-war years. they mattered more than anything else.